Ziha v The Queen - [2013] NSWCCA 27

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Ziha v R [2013] NSWCCA 27
Hearing dates: 23 November 2012
Decision date: 21 February 2013
Before: Macfarlan JA at [1]
Fullerton J at [93]
Campbell J at [94]
Decision:
(1) The time for the appellant to appeal against his conviction is extended to enable his purported appeal to be brought.
(2) The appeal against conviction is dismissed.
(3) Leave to appeal against sentence is refused.

Catchwords:
CRIMINAL LAW - murder charge - defence of substantial impairment of capacity by abnormality of mind - s 23A Crimes Act 1900 - no issue of principle

CRIMINAL LAW - murder charge - accused admitted to killing of estranged wife's lover - whether issue of provocation should have been left to jury - issue of provocation not raised by accused at trial - s 23 Crimes Act 1900 - whether ordinary person in position of appellant might have so far lost self-control as to have formed an intent to kill
CRIMINAL LAW - sentence appeal - murder - 18 year non-parole period with 6 year balance of term - leave to appeal refused
Legislation Cited: Crimes Act 1900
Crimes (Sentencing Procedure) Act 1999
Cases Cited: Green v R [1997] HCA 50; 191 CLR 334
Johnson v R [1976] HCA 44; 136 CLR 619
Pollock v R [2010] HCA 35; 242 CLR 233
R v Whitworth [1989] 1 Qd R 437; 31 A Crim R 453
SKA v R [2011] HCA 13; 243 CLR 400
Stingel v R [1990] HCA 61; 171 CLR 312 at 332
Van Den Hoek v R [1986] HCA 76; 161 CLR 158
Category: Principal judgment
Parties: Gabor Ziha (Appellant)
Regina (Respondent)
Representation: Counsel:
In person (Appellant)
R Herps (Respondent)
Solicitors:
In person (Appellant)
Solicitor for Public Prosecutions (Respondent)

File Number(s): 2007/1954
Decision under appeal

Jurisdiction:

9111

Citation:

R v Gabor Ziha [2008] NSWSC 145

Date of Decision:

2008-02-29 00:00:00

Before:

Barr J

File Number(s):

2007/1954

Judgment

MACFARLAN JA: After a trial in the Supreme Court in February 2008 before a judge and jury, the appellant was convicted of murdering Mr Barry Corbett on 1 August 2006 (contrary to s 18(1)(a) of the Crimes Act 1900), and of maliciously wounding Mrs Marija Ziha, his wife, on the same date (contrary to s 35(1)(a) of the Crimes Act). The appellant had pleaded not guilty to the murder of Mr Corbett but guilty of his manslaughter. He was represented at the trial by counsel and conducted a defence to the murder charge of "substantial impairment by abnormality of mind" (s 23A of the Crimes Act). He had pleaded not guilty to the charge of malicious wounding of his wife, stating that it "was accidental, and there was no intention or malice".

The appellant was unrepresented on his appeal against his convictions. In support of the appeal he lodged closely-typed written submissions exceeding 100 pages in length and addressed the Court orally.…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Ziha v The Queen

Details

AGLC: Ziha v The Queen [2013] NSWCCA 27
Case: [2013] NSWCCA 27
Decision Date: 21 February 2013

CaseChat Overview and Summary

In the High Court of Australia, Ziha was convicted of the murder of his estranged wife's lover. The primary issue before the court was whether the trial judge had erred in not directing the jury on the issue of provocation. The appellant admitted to killing the victim, but his defence was that he suffered from a substantial impairment of his capacity by abnormality of mind, as defined by section 23A of the Crimes Act 1900. The court was tasked with determining whether the judge should have allowed the jury to consider the possibility of provocation, and if so, whether this was an error that warranted a new trial.

The court examined the circumstances surrounding the killing and the legal principles governing the defence of provocation. The appellant had not raised the issue of provocation during the trial, and the court had to decide whether it was appropriate for the judge to have directed the jury on this point. The court considered the definition of provocation under section 23 of the Crimes Act 1900, and whether the ordinary person in the appellant's position might have lost self-control to the extent of forming an intent to kill. Ultimately, the court found that the trial judge had not erred in not directing the jury on the issue of provocation, as the appellant had not raised this as a defence during the trial.

The High Court upheld the conviction and dismissed the appeal. The court found that there was no error in the trial judge's handling of the provocation issue, and that the appellant's conviction for murder was supported by the evidence. The court also considered the sentence appeal, and found that the 18-year non-parole period with a 6-year balance of term was appropriate. The court refused leave to appeal the sentence. The decision of the High Court confirmed the conviction and sentence, and no new trial was ordered.

Orders